Tag Archives: ECHR

Theresa May stated today that judges must follow stricter rules on the application of human rights laws in relation to immigration and deportation of criminals. She also claimed that Article 8 of the European Convention on Human Rights (ECHR) – the right to family life, is not an absolute right and must be weighed up against public interest. The cross government agreement approved by Ken Clarke encourages judges to interpret Article 8 in a way that would put the state before the right to family life.

On the BBC’s Andrew Marr show the Home Secretary revealed plans to tighten immigration laws and to prevent criminals using Article 8 to avoid deportation. The UK is introducing “financial independence” rules which will make it more difficult for tens of thousands of families to bring relatives into Britain. When the measures come into force next month, individuals must earn at least £18,600 to bring in a non-EU spouse into the UK and additional income for each child. May is emphasising that this will prevent foreign partners from “relying on benefits” for when they settle in the UK. She claims that these moves seek to largely reduce net migration as well as ensuring integration and economic independence of immigrants.

She also referred to plans to introduce “Britishness tests” which will consist of English language as well as a “life in the UK” tests. Marr pointed out the challenges that may arise in relation to Article 8 ECHR, however May argued that states have the ability to “qualify” the right to family life i.e. apply their own interpretation. She argued that the courts have not been correctly qualifying that right “not even in the way stated by the Convention”. Ultimately she is pressuring judges to enforce more stringent legal controls on the immigration of relatives of British residents as well as making it easier to deport foreign criminals.

The Home Secretary stated that she will outline the rules and guidelines in qualifying the right in the courts. “[I am going to] set out the rules that say this is what parliament, this is what the public, believe is how you balance the public interest against the individual’s interest” According to May the ECtHR has actually been tougher than some English courts in this area, she claimed that in many European cases judges differentiate between a foreign nationals who have been in the country illegally or legally.

Her proposal for tighter rules emphasises the governments view that the right to family life doesn’t necessarily take precendence over other factors. The government plans to introduce legislation if the judges do not follow the motion set out by the Commons. She warned: “I would expect that judges will look at what parliament will say and that they will take into account what parliament has said. If they don’t then we will have to look at other measures and that could include primary legislation.”

It is unclear how exactly the government is to assess whether or not judges have taken on board the government’s wishes. For May to publicly criticise the work of judges for not being in line with the governments policies seems a little worrying as surely judges should be expected to act within the framework of the law rather than according to the interests of the government. Lawyers have stated that implementing legislation to amend the human rights act or to change its proper application would most likely be contrary to the convention.

Critics have argued that it is not the job of Parliament to interpret the law but that of the judges. May’s comments on the Marr show could be seen to be labelling immigrants as benefit scroungers or criminals who are abusing human rights laws such as Article 8 in order to stay in the country. The governments intervention on the current approach taken by judges seems both unnecessary and inappropriate. While many judges inevitably reflect public opinion to a degree they should primarily base their judgments on the law. Government has no place to enforce their political agenda onto court decisions, and judges should act in the public interest to uphold a fair and legitimate legal system that upholds human rights.

Mr Boulois, was imprisoned in Luxembourg, he filed several requests in order to obtain prison leave, which were all rejected by the Prison Board. He then lodged an application for judicial review with the Administrative Court. However, the Administrative Court denied it had jurisdiction to examine the application. In his application against the Grand Duchy of Luxembourg, Mr Boulois claimed that Article 6§1 of the ECHR had been violated arguing that he did not have access to a fair hearing or to a court. After the First Section of the ECtHR ruled in his favour, the government of Luxembourg requested for the case to be referred to the Grand Chamber.

The Ruling

« The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute… over a “right” which can be said… to be recognised under domestic law» (§90)

« the Court observes that section 6 of the 1986 Law defines prison leave as… a “privilege” which “may be granted” to prisoners in certain circumstances» (§96)

« Thus it was clearly the legislature’s intention to create a privilege… the present case concerns a benefit created as an incentive to prisoners ». (§98)

« … the applicant could not claim, on arguable grounds, to possess a “right”» (§101)

« Furthermore… although the Court has recognised the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment… neither the Convention nor the Protocols thereto expressly provide for a right to prison leave» (§ 102).

« There has therefore been no breach of Article 6 » (§105).

Observations

In some European states, release and prison management decisions such as whether to grant prison leave, are deemed ‘administrative’ and are made by the executive. However, in France and other European countries such as Belgium, Spain, Italy, Germany, they are deemed to be of a ‘penal’ nature and a judge makes the decision. This often consists of a hearing, where a lawyer can defend the inmate and, appeal, and even access to the highest court (Padfield and al. 2010). It appears that there is no clear consensus in Europe as to the very nature of what French law calls ‘sentence management measures’.

Despite ruling in Ganci v. Italy (30 Oct. 2003, n° 41576/98) that Article 6 applied to a disciplinary sanction if it affected civil rights such as family contacts; and in Enea v. Italy (Gd Chamber, 17 Sept. 2009, n° 74912/01), that a security prison regime affecting visitation did affect ‘civil rights’; in Boulois, the Grand Chamber analyses the request for prison leave as not being of a ‘civil’ nature. According to Luxembourg’s legal system, prison leave is a ‘privilege’ which aims at ‘encouraging’ prisoners, this corresponds to the historical view that prison leave is used to control prisoner’s behaviour. In view of modern penological goals, prison leave now serves two purposes: firstly, to allow prisoners to prepare their future and inevitably – except for lifers – release (e.g. by trying to find a job) ; secondly, to keep in contact with their families. Family rights are particularly important as they play a key role in deterring crime and are protected under Article 8 (Maruna, 2001; Farrall, 2002).

Prison leave should not be seen as a ‘privilege’. As stated above, in most modern nations, it is no longer seen as being a purely behavioural tool. It is true that most legal systems contain provisions which state that inmates ‘may’ or ‘can’ be granted prison leave. The ECtHR has itself ruled several times that by using the word ‘can’ does not mean that the authority or judge has full discretionary power ( Lambourdière v. France, 2 Aug. 2000, n° 37387/97 and Camps n. France, 23 Nov. 1999, n° 42401/98). It has been argued numerous times (e.g. in Herzog-Evans, 2012), that such legal provisions should be interpreted reasonably. Indeed when the law states that an offender ‘can’ be released or granted prison leave, it does not imply that he has an absolute right to either. Conversely, it does not mean that once all legal conditions and requirements are met, the court or governing authority can still deny the offender’s application simply ‘because it can’. One should not confuse discretion with whim. According to a fairer interpretation, when a legal system uses the verb ‘can’, it means that once all legal requirements are met – and this should include the protection of the public – then the authority or court should grant release or prison leave. In other words, even when ‘can’ is used, there is indeed a right to prison leave once its conditions are met.

According to the Grand Chamber, however, there is no such thing as a European principle of ‘reintegration’. The court only refers to the conventions and protocols, without mentioning recommendations. Recommendations may be deemed as being mere ‘soft law’; nonetheless, they do represent a consensus between European countries. Precisely, and to quote only a few, the European Prison Rules (2006, preamble), the European Probation Rules (2010, section 2), and Recommendation (2003)22 (preamble) all refer to reintegration as being a fundamental principle. In other words there is indeed a consensus amongst European member states relating to the importance of reintegration.

Finally, one must look at the bigger picture: the right to a fair trial as laid out in Art. 6, is not only a humanitarian procedural luxury that Western countries can afford. Fair trial is first and foremost the mark of a democracy. In most modern democracies, the right to a fair trial conquers more and more legal territories. In France, for instance, it now applies to disciplinary sanctions, solitary confinement decision-making, release, recall, and other sanctions. Besides, from the criminological viewpoint, Art.6 is an essential component of the legitimacy of justice. As empirical studies have shown (Tyler, 1990; Tyler and Huo, 2002) it fosters compliance (Liebling, 2007) – probably substantive compliance as opposed to instrumental compliance (Robinson and McNeill, 2008) – in other words it is essential to grant leave from prison in order to prevent reoffending.

Baltasar Garzon was cleared by the Spanish Supreme Court of overstepping his authority on Monday. He was accused of abusing his judicial powers by opening an investigation into the disappearance of 114,000 individuals during the Franco era. Mr Garzon argued that these were crimes against humanity and therefore could not be subject to a 1977 Amnesty legislation, which prevented the perpetrators from being tried.

Only one judge on the seven judge panel was in favour of a guilty verdict. However it seems his acquittal was based on a technicality rather than a changing view of the law regarding the issue. Mr Garzon had committed an error when he opened the investigation but it did not constitute a crime. The ruling stated:

“He misinterpreted Spanish law but did not knowingly and arbitrarily violate the limits of his jurisdiction … as would be required for a conviction”

He was recently found guilty of illegal wiretapping in a separate case, which in Spanish law seems to constitute a rather grey area. This guilty verdict caused him to be suspended from acting as a judge for 11 years, effectively ending the career of the 56 year of judge. He was also accused of corruption in another case which has been thrown out by the Supreme Court.

His supporters and a number of human rights groups have argued that these cases against him were primarily politically motivated. The prominent judge had made many enemies due to his activism, especially launching an investigation into Spain’s recent bloody history. His opponents have argued that writing history should be left to the historians while his supporters want accountability and answers for the crimes committed. The outcome of this case appears to have done little in terms of clarifying the legal issues surrounding Mr Garzon’s conduct and his aims, it has arguably just raised concerns over the legal and political implications of addressing Spain’s past.

The proposed ‘closed material procedures’ (CMPs) in the governments Green Paper seems not only alarming but also hugely misguided. The Green Paper proposes that these secret proceedings would be extended to any civil cases. CMPs would take place without the presence of the defendant and without their knowledge of the charges against them. In these closed procedures, ministers would be able to order hearings to be conducted in secret and claimants would be denied access to government evidence or witnesses.

While the absent defendant would be represented by a barrister in court, there may be no or little contact with their client. This would allow the material and evidence in the trial to be effectively unchallenged in court. To add to the secrecy and absurdity of the prospect of these proceedings, even the final judgment could be wholly or partially withheld, allowing the convicted individual to be deprived of any information regarding his conviction.

Binyam Mohammed

The proposal comes after a number of actions were brought against intelligence agencies by former terrorist suspects, such as Binyam Mohammed, to the embarrassment of both government and the security services. Mohammed, an ex Guantanamo detainee and a British citizen, claims he was tortured while in custody, in the US amongst other places and accused the Britain of being complicit in this. Rather than disclosing intelligence related material to him and other former detainees, the British government paid him £1m in compensation.

Lord Carlile

In response to these proceedings against the government, it appears that high profile figures such as Sir Malcolm Rifkind, chairman of the parliamentary intelligence and security committee (and MP for Kensington), along with Lord Carlile QC are supporting CMPs as a viable a solution to such problems. The Green Paper proposes to extend the use of CMPs to civil claims. Lord Carlile criticised the current system as being insufficient in dealing with civil cases regarding national security, he claimed that payouts such as that received by Binyamin Mohammed was not an acceptable way of settling civil claims. He argued that the State should not be put in a position of having to choose to pay compensation to a claimant who may be the wrongdoer.

CMPs would take away the transparency of court procedures and give greater powers and increased secrecy to the workings of the security services and the government. The key issues here are accountability and transparency of the legal system. In its response to the Green Paper published on the HM website, the human rights group Reprieve gave a damning criticism of these proposals. They stated that this paper is simply asking the wrong questions, by seeking to drastically reduce the level of accountability of the government and intelligence services rather than attempting to improve these areas.

The response by Northamptonshire Police, welcomed the undisclosed sharing of secret information between states, however it also raised concerns over the misuse of CMPs and their human rights implications.

“The impact of the overuse of CMP’s would be to damage the UK reputation of a free and fair democracy. There are also considerations to be made pursuant to Article 6 of the European Convention on Human Rights – namely, the right to a fair trial”

Malcolm Rifkind

However Malcolm Rifkind argues that the protection of sensitive material is essential to the co-operation with foreign intelligence agencies, and that intelligence sharing will be endangered if these exchanges are exposed in court. He claims that the sharing sensitive material with defendants and the court threatens the the future intelligence co-operation between states, by undermining the principle of confidentiality. Therefore publication of intelligence material would harm our national security.

It is not unusual for government agencies to support legislation infringing civil liberties and human rights in the name of national security. This legislation allowing civil judgements to be made behind closed doors, increases their powers at the expense of fairness and transparency. One of the most notable pieces of legislation in the UK regarding secrecy in the name of protecting national security is the Special Immigration Appeals Commission (SIAC). SIAC deals with appeals for foreign nationals facing detention, deportation or exclusion from the UK, often relating to alleged terrorism offences. It’s hearings and rulings are not fully revealed to the public nor to the appellant, this procedure has been widely criticised for it’s fairness and legality. To extend such secret procedures to civil matters is somewhat distrurbing.

Lord Carlile and Malcolm Rifkind stress the need for CMPs in the interests of national security, while this argument has been widely criticised by many of the respondents to the Green Paper. The response from the Special Advocates, who are appointed to work under SIAC in closed procedures and were proposed to act in CMPs, was particularly telling. They stated that no reason has been identified in the Green Paper to justify the introduction of such sweeping power.

“It is one thing to argue that, for reasons of national security, the unfairness and lack of transparency inherent in CMPs should be tolerated in specific areas…It is quite another to suggest that Government Ministers should be endowed with a discretionary power to extend that unfairness and lack of transparency to any civil proceedings, including proceedings to which they are themselves party.”

The apparent need for CMPs seems to be an attempt by the government to extend it’s powers in the under the guise of national security. The role that secrecy plays in the justice system appears to be solely to the advantage of the security services rather than in the interests of justice. The Green Paper raises both grave procedural and practical concerns, whilst presenting a relatively unrealistic proposal. Transparency and accountability are essential elements of the justice system in England and Wales, by conducting trials in secret and in the absence of the defendant, these proceedings take away core features of a fair trial. Expanding the use of CMPs would also be debilitating for the practice and progression of common law, as these hearings would be prevented from being reported. This would deny lawyers from accessing precedents arising from these procedures, making them only available to a few existing special advocates.

When Nicolas Bratza, the head of the European Court of Human Rights (ECtHR), released the figures for ruling against states in 2011 last week, Turkey was again the country with the highest number of violations of the European Convention on Human Rights (ECHR). With 159 cases that violated the ECHR, this is the 3rd year in a row Turkey has been at the top of the list, painting a dim picture of Turkey’s human rights record. Russia (with 121 cases) and the Ukraine (105) were not lagging far behind. Britain fared comparably well with only 8 violations. However David Cameron’s comments earlier in the week stating that the ECtHR was in danger of becoming a “small claims court”, were not so well received by the Strasbourg based court.

Despite not being an EU Member State, the ECHR, drafted in 1950, places Turkey under the jurisdiction of the ECtHR. Although Turkey signed the protocols of the convention, it has yet to ratify a number of them. Nevertheless, in 1987 Turkey started allowing individuals to file applications and apply to the ECtHR individually, 3 years later it also recognised the compulsory jurisdiction of the court.

The majority of Turkey’s violations concerned the length of proceedings and the right to a fair trial set out by Article 6 of the ECHR. There are currently 16,000 ongoing cases against Turkey, the second-highest number of cases filed against a country under the ECtHR’s jurisdiction. The Turkish government claims it has made considerable progress in improving the human rights situation in the country. Justice Minister Sedat Ergin stated that a series of reforms had been adopted in recent years and insisted that similar legal amendments will continue to improve Turkey’s human rights record. Last year, after a public referendum a number of constitutional reforms were implemented, many relating to the judiciary. These reforms introduced the right to petition the Constitutional Court for human rights violations and established the Ombudsman Office for grievances regarding the misconduct of government agencies and employees.